MENG v. SCHWARTZ

This matter comes before the court on Defendant John Huang's
Motion to Recuse pursuant to 28 U.S.C. § 455(a). Huang contends
that the impartiality of this court might reasonably be
questioned in light of credibility findings issued by this court
regarding Huang's testimony as a nonparty witness in another
matter pending before the court. See Judicial Watch v. United
States Dep't of Commerce, 34 F. Supp.2d 28, 33 (D.C. 1998). Upon
consideration of defendant's motion, the opposition thereto, the
applicable law, and for the reasons set forth below, the court
hereby DENIES defendant's motion to recuse.

In addition to being named as a defendant in the instant case,
Huang has testified as a non-party witness in a Freedom of
Information Act ("FOIA") case currently pending before the
court. See Judicial Watch v. United States Dep't of Justice,
Civ. No. 95-133 (D.C.). As noted above, this court's findings;
concerning the credibility of Huang's testimony in the Commerce
FOIA action form the basis for defendant's present motion.
Judicial Watch, 34 F. Supp.2d at 33.

II. DISCUSSION

Section 455(a) of Title 28 of the United States Code provides
that a federal judge shall "disqualify himself in any proceeding
in which his impartiality might reasonably be questioned."
28 U.S.C. § 455(a). Whether there is any basis for questioning a
judge's impartiality is to be determined by an objective
standard. United States v. Heldt, 668 F.2d 1238, 1271
(D.C. Cir. 1981); United States v. Fiat Motors of North Ami.,
512 F. Supp. 247, 250 (D.C. 1981). That is, recusal is required
where the court determines that "an informed observer would
reasonably question the judge's impartiality." United States v.
Barry, 961 F.2d 260, 263 (D.C. Cir. 1992). Thus, to sustain its
burden and compel recusal, the moving party must demonstrate the
court's reliance on an "extrajudicial source" that creates an
appearance of partiality or, in rare cases, where no
extrajudicial source is involved, the movant must show a
"deep-seated favoritism or antagonism that would make fair
judgment impossible." Liteky, 510 U.S. at 555, 114 S.Ct. 1147.

Judges are presumed to be impartial. United States v. Fiat
Motors, 512 F. Supp. at 251. Accordingly, "judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion." Liteky v. United States, 510 U.S. 540,
555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (citations omitted).
To the contrary, "opinions formed by the judge on the basis of
facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make a
fair judgment impossible." Id. (emphasis added). Indeed, the
Supreme Court has observed that "[t]he judge who presides at a
trial may, upon completion of the evidence, be exceedingly ill
disposed towards the defendant . . . [b]ut the judge is not
thereby recusable for bias or prejudice since his knowledge and
the opinion it produced were properly and necessarily acquired
in the course of the proceedings." Id. at 550-51,
114 S.Ct. 1147. Moreover, "the objective appearance of an adverse
disposition attributable to information acquired in a prior
trial is not an objective appearance of personal bias or
prejudice, and hence, not an objective appearance of improper
partiality." Id. at 553 n. 2, 114 S.Ct. 1147.

The court begins by noting that defendant's reliance on
Barrett is misguided, as that case is inapposite.
Notwithstanding the fact that the present action is not a
perjury bench trial, the statement in Barrett upon which
defendant relies upon is obiter dicta, as the Court of Appeals
did not reach the merits of the recusal question. Rather, the
Court of Appeals in Barrett held that the defendant had waived
his right to request recusal by not raising the issue below.
Id. at 951. Further undercutting defendant's assertions
regarding Barrett is that, by its terms, the case reinforces
the fact that the statute, Section 455(a), does not require
recusal where a subsequent proceeding involves testimony from a
prior case. Id.

Turning to whether the threshold for recusal under Section
455(a) has been met, the court finds that defendant has failed
to demonstrate the appearance of partiality through an
"extrajudicial source" of bias or a "deep-seated favoritism or
antagonism that would make fair judgment impossible." Liteky,
510 U.S. at 555, 114 S.Ct. 1147. To begin with, defendant offers
nothing more than mere speculation that "some portion of this
court's statements concerning Huang [in Judicial Watch] was
based on an extra-judicial source." See Reply to Plaintiff's
Opposition to John Huang's Motion to Recuse, at 4 (Filed
December 29, 1998). Moreover, defendant ignores the fact that
the news articles he wishes to call "extrajudicial" sources were
presented to the court as exhibits to various pleadings filed by
the plaintiff in the course of the FOIA litigation.

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